Bartholomew v. Lee, 88-3882

• Decision Date: 01 December 1989
• Docket Number: No. 88-3882,88-3882
• Citation: 889 F.2d 62
• Parties: Angela BARTHOLOMEW, Et Al., Plaintiff-Appellants, v. Harry LEE, Et Al., Defendants, Jim Wilson and Associates, Inc., etc., et al., Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 62

889 F.2d 62

Angela BARTHOLOMEW, Et Al., Plaintiff-Appellants, v. Harry LEE, Et Al., Defendants, Jim Wilson and Associates, Inc., etc., et al., Defendants-Appellees.

No. 88-3882

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Dec. 1, 1989.

Susanne B. Weiner, Jernigan & Weiner, New Orleans, for plaintiffs-appellants.

James S. Thompson, Porteous, Hainkel, Johnson & Sarpy, New Orleans, La., for Wilson & Assoc. and Gene Knight.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEE, DAVIS and JONES, Circuit Judges.

PER CURIAM:

Appellants, arrested by Jefferson Parish deputies for creating a disturbance in a Marrero, Louisiana, shopping mall, appeal from a summary judgment in their attempted civil rights action against the mall that neither it nor its employees acted under color of state law in the premises. The only contention seriously advanced for reversal is that the mall's security guards acted "in concert" with the deputies, so that their actions constituted those of the state. We have upheld that theory of recovery in several decisions, of which a representative example is Smith v. Brookshire Brothers, Inc., 519 F.2d 93 (5th Cir.1975).

Crucial to making out a case on such a theory, however, is a finding that the state police acted according to a preconceived plan and on the say-so of the private actor, not on the basis of their own investigation:

The plaintiffs had to show that the police and the store managers were acting in concert; that Brookshire and the police had a customary plan whose result was the detention in the present case. Adickes v. Kress & Co., 1970, 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142.

The district court decided that such a plan had been evidenced: "The arrests by the Police Department of the City of Lufkin were made without the filing of a valid complaint and without any investigation, all of which was pursuant to said preconceived plan." (Finding of Fact 4; emphasis added). We do not believe that such a finding is clearly erroneous. Many colloquies at trial gave testimony to the proposition that Brookshire officials knew that they could have people detained merely by calling the police and designating the detainee.

Smith, Id. at 94.

Appellants point to no evidence whatever demonstrating the existence of a customary or preconceived plan by which the mall defendants could have persons detained merely by designating them to the police. This is dispositive; but even were it not, the sole evidence offered that such a thing even occurred (whether or not pursuant to a preconceived plan) is testimony by the back-up Parish deputy that, as appellants' brief accurately puts it, "the plaintiffs were arrested in part for the incident in the mall and at the request of the [mall] security personnel, and not wholly based on any independent observations of the officers." (emphasis added).

This is insufficient to make an issue of material fact. The arresting officer testified,...